STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 01-IR-01
Issued: June 27, 2001
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In Re: CITY OF PORTLAND, PETITION FOR )
INTERPRETIVE RULING ) INTERPRETIVE RULING
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On April 13, 2001, the City of Portland filed a Petition for
Interpretive Ruling with the Maine Labor Relations Board on the
question of whether the establishment of a Police Civilian Review
Subcommittee is, in whole or in part, a mandatory subject of
bargaining under 26 M.R.S.A. 965(1)(C) and 969 and, if not,
whether there are any impacts on working conditions over which
the parties must negotiate. In accordance with Chapter 12, 41
of the Board's Rules and Procedures, a copy of the petition was
served on the Portland Police Benevolent Association and a copy
was posted on the bulletin board at the Board's offices and on
the Board's internet website. The Board received briefs from the
City of Portland and the Portland Police Benevolent Association.
The Board concludes that the establishment of the Police Civilian
Review Subcommittee is not, in itself, a mandatory subject of
bargaining. To the extent that the operation of the Subcommittee
affects working conditions and contract grievance arbitration,
however, those effects are a mandatory subject of bargaining
under 965(1)(C) of the Municipal Public Employees Labor
Relations Law, 26 M.R.S.A. 961 et. seq.
The City's Petition includes a general description of its
proposed Police Civilian Review Subcommittee, which would be a
subcommittee of the City's Civil Service Commission.[fn]1 The
City
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1 The Civil Service Commission oversees the employment of Police
and Fire Department employees. Its primary concern is hiring
employees, as the provisions of the collective bargaining agreement
providing binding arbitration for certain disciplinary actions control
those issues for covered employees. See 26 M.R.S.A. 969. Under the
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describes the purpose of the Subcommittee as "to have a body
outside the Police Department review the Internal Affairs
investigative process, primarily to ensure public credibility of
the results reached as to whether any formal citizen complaint
against an officer should or should not be sustained." (City's
brief, p. 2). This review would occur prior to any review of the
Internal Affairs investigation by the Chief of Police and prior
to any disciplinary action.
The Civilian Review Subcommittee would review both the
sufficiency of the investigation and the corresponding
recommendation by Internal Affairs. Specifically, the
Subcommittee is authorized to recommend (or require)[fn]2 that
additional investigation be completed by Internal Affairs,
stating what witnesses or matters require further investigation.
The Subcommittee must state in its report whether it agrees or
disagrees with the disposition of the citizen complaint by
Internal Affairs (that is, whether the complaint is "sustained"
or "not sustained"), and specify the basis for its agreement or
disagreement. The Subcommittee is not authorized to question
witnesses or conduct any investigation itself nor is it
authorized to impose discipline.
Once the Subcommittee completes its review (potentially
after receiving an amended report from Internal Affairs if the
Subcommittee requires additional investigation), its report would
be submitted along with the report of the Internal Affairs
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collective bargaining agreement, an employee may opt to have a Civil
Service Commission hearing on serious disciplinary actions, rather
than electing to use the grievance arbitration procedures.
2 The papers are inconsistent on whether the Subcommittee just
"recommends" additional investigation or can order it. In the section
#1 under "Authority of Subcommittee" (City's Brief, p. 3), the City
uses the word "recommend." The next paragraph, however, states that
if the Subcommittee recommends additional investigation, Internal
Affairs would "do" the additional investigation and send its amended
report to the Subcommittee for final review.
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Investigation to the Police Administration for the decision on
whether to impose discipline. The City notes that all
information in the Internal Affairs report and in the
Subcommittee's report would remain confidential and the employee
would have the right to a copy of all the information. If
disciplinary action is taken, the Subcommittee report could be
used by either party in any Civil Service Commission hearing or
in the grievance procedure.
The City also presented an alternative proposal for the
Subcommittee which differs from the above in that the
Subcommittee's review would occur after Police Administration has
decided whether to impose discipline. Thus, the Subcommittee's
review and report would cover not only whether the Subcommittee
recommended additional investigation and whether it agreed with
the disposition of the citizen's complaint, but also whether the
Subcommittee agreed or disagreed with the decision regarding
disciplinary action.
In response to the City's petition, the Portland Police
Benevolent Association filed a brief arguing that the subject of
the Citizen Review Subcommittee is a mandatory subject of
bargaining. The Association argues that the Subcommittee's
involvement introduces politics into an otherwise neutral area of
review by trained professionals and that it materially affects a
mandatory subject of bargaining. The Association also contends
that requiring the Subcommittee to review the investigative
process and authorizing it to order additional investigation will
delay the process and materially affect working conditions. The
Association argues that allowing either party to use the
Subcommittee report in the grievance procedure or Civil Service
Commission appeal process is a material change that is a
mandatory subject of bargaining.[fn]3
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3 The Association also claims that providing information on
criminal investigations to the Subcommittee violates state law. We
have no jurisdiction to address this issue.
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DISCUSSION
It is well settled that an issue is a mandatory subject of
bargaining if it "is significantly and materially related to
'wages, hours, working conditions and contract grievance
arbitration.'" Portland Firefighters Assoc., I.A.F.F. v. City of
Portland, No. 83-01 at 3 (Me.L.R.B. June 24, 1983), aff'd 478
A.2d 297 (Me. 1984). There is no management prerogative
exception to the duty to bargain and the Board and the Law Court
have expressly rejected the argument that a management
prerogative exception is implied. See, Portland Firefighters,
83-01 at 5, n.3, citing Board of Directors of M.S.A.D. No. 36 v.
M.S.A.D. No. 36 Teachers Assoc., 428 A.2d 419, 423 n.6 (Me. 1981)
and State v. Maine Labor Relations Board, 413 A.2d 510, 514 (Me.
1980). Section 969 of the MPELRL prohibits collective bargaining
over merit examinations and rating of candidates for hire and
promotion but does not otherwise limit mandatory subjects of
bargaining.
The City's two proposals for its Police Civilian Review
Subcommittee fall somewhere in the middle of the spectrum for
such bodies as far as the impact on mandatory subjects is
concerned. At one end of the spectrum would be a review
committee that not only reviews the work of the Internal Affairs
investigation, but also conducts its own investigation, examines
witnesses, compels testimony and has the authority to impose
discipline on the police officer being investigated. There is no
question that such model would significantly and materially
affect the working conditions of an employee being investigated
and would therefore be a mandatory subject of bargaining.
At the other end of the spectrum is a review committee that
looks over the work of the internal affairs investigation after
everything has run its course: after discipline has been imposed
or the decision not to impose discipline has passed, and after
any grievance filed has completely run its course. Such a review
would not be to pass judgment on Internal Affairs' handling of a
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particular case, but to perform a general audit of their
investigative methods and the integrity of the disciplinary
process. The target of that review would be Internal Affairs and
Police Administration, rather than the officer who was
investigated. In such a model, the relation of the process to
working conditions or contract grievance arbitration procedures
would be remote.
The Board has only issued one decision discussing the impact
upon a law enforcement officer of being investigated by internal
affairs. In Hendsbee and Maine State Troopers Assoc. v. Dept. of
Public Safety, the Board recognized that being the subject of an
Internal Affairs investigation is a very serious affair that
understandably causes worry for any officer being investigated
because it is "shrouded in secrecy" and it could ultimately lead
to discipline or discharge. No. 89-11, p. 25 (Me.L.R.B. Jan. 16,
1990). In Hendsbee, the Board concluded that "any role by
[Internal Affairs] in the investigation of grievances will have a
chilling effect on employee access to the parties' grievance
resolution procedure." Id.[fn]4
We have no reason to believe that being a target of an
internal affairs investigation at the Portland Police Department
is any less worrisome or serious for the employee that it was
recognized to be for State Troopers in Hendsbee. Furthermore,
the Portland Police Department's Standard Operating Procedure on
Internal Affairs Investigations permits the Chief to put an
officer on paid leave for the duration of the investigation (SOP
#52, VII). The SOP uses language identical to the collective
bargaining agreement (the investigation "shall be conducted with-
out unreasonable delay") reflecting the employer's recognition
that the length of the investigation is a working condition. For
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4 In Hendsbee, the discussion of the impact of Internal Affairs
investigations of employees did not arise in the context of analyzing
a subject as mandatory or permissive. The question was whether having
Internal Affairs investigating grievances interfered with the
employees' free exercise of their collective bargaining rights.
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these reasons, we conclude that the condition of being the
subject of an internal investigation is a working condition that
is a mandatory subject of bargaining. We must also note the
obvious, that issues concerning employee discipline and the
grievance procedure are also mandatory subjects of bargaining.
See, e.g, AFSCME v. Ellsworth School Committee, No. 81-41
(Me.L.R.B. July 23, 1981).
For ease of discussion, we will first address the City's
alternate proposal for the Subcommittee which requires the
Subcommittee to conduct its review after the Police Chief decides
the question of imposing discipline. This alternate proposal
does not specify what is to occur if the Civilian Review
Subcommittee disagrees with the Police Administration's decision
on discipline. Can the report of the Subcommittee be the basis
for the Administration to increase the discipline imposed? In
what circumstances? How would a change in the discipline imposed
affect the nature of and time restrictions on grieving that
discipline? What if a discipline grievance has already proceeded
through a number of steps before the Subcommittee's report is
issued? What happens to the grievance? These questions
demonstrate that the City's alternate proposal could
significantly and materially affect the working conditions and
contract grievance arbitration procedures of the members of the
bargaining unit. Thus, we conclude that the impact of the work
of the Civilian Review Subcommittee upon the discipline procedure
and grievance procedure is a mandatory subject of bargaining.
The City's primary proposal affects working conditions to a
lesser extent in one respect because the Subcommittee conducts
its review before Police Administration has made any decision on
discipline. Thus, there is no Subcommittee assessment of the
Administration's decision on discipline that could result in a
change to the discipline imposed or affect grievances underway.
On the other hand, the period of not knowing if any discipline
will be imposed is increased as Police Administration would not
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have the results of the Internal Affairs investigation until the
Subcommittee review process is completed.
As noted above, being the target of an internal affairs
investigation is a significant issue for a police officer,
particularly in light of the fact that the officer can be
relieved of his or her duties by the Chief of Police for the
duration of the investigation. There is a very real stigma
associated with being placed on administrative leave pending an
internal affairs investigation in any law enforcement agency.
The most notable impact of the Civilian Review Subcommittee on
this working condition is the fact that the Subcommittee's review
will extend the investigation process by adding one more step, at
a minimum, before Police Administration makes a decision on
whether to impose discipline. The investigation process could be
prolonged even further if the Subcommittee decides that further
investigation needs to be completed and sends it back to Internal
Affairs for additional work. (This issue also applies to the
City's alternate proposal.)
The City recognizes that the investigation process could be
prolonged and notes that the most recent collective bargaining
agreement addresses timing in general terms in the section on
member rights during internal investigations.[fn]5 The City
suggests
that any potential delay problem could be "easily" resolved by
"requiring the Subcommittee to act within a reasonable time or
lose the right to review." (City's brief, p. 9). Perhaps such a
move would alleviate the Association's concerns about the impact
of the process on working conditions, but it does not remove the
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5 The fact that the existing contract language may, in the end,
be viewed by both parties as a satisfactory way to address new
concerns raised by the operation of the Review Subcommittee does not
have any bearing on whether the issue itself is a mandatory subject of
bargaining.
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issue from the realm of mandatory subjects of bargaining.[fn]6
The Association points out that the City's proposal (and the
alternate proposal) includes a provision allowing either party to
use the Subcommittee reports in either the grievance procedure or
a Civil Service Commission appeal.[fn]7 Contract grievance
arbitration is specifically mentioned in the statute as a
mandatory subject of bargaining. The evidence the parties are
allowed to use in the grievance procedure does significantly and
materially affect the grievance process. The City argues the use
of the Subcommittee's report "is no different than any other
evidence which might be presented by a party, and the hearing
officer could accept, reject or limit the relevancy of the
report." (City's brief, p. 9). This may be an accurate descrip-
tion of the norm for handling evidence in grievance proceedings
and arbitration. Again, the fact that the existing norms may be
sufficiently flexible to accommodate the introduction of a new
report does not mean that the issue is not a mandatory subject of
bargaining. Current practice may or may not be sufficient; that
is simply not our call to make.
The Police Benevolent Association argues that even though
the Subcommittee would have no authority to recommend or impose
any particular discipline, it would bring so much politics into
the equation that Police Administration would be forced to
respond to the political winds. We find this argument to be
without merit. Politics is always present in the operation of
any form of government based on democratic principles. Whether a
government chooses to respond to the political winds embodied in
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6 It is important to remember that identifying an issue as a
mandatory subject of bargaining does not mean that a party is required
to reach any particular agreement or even to make a concession. See
26 M.R.S.A. 965(1)(C).
7 Under the most recent collective bargaining agreement, an
officer may opt to use the Civil Service Commission appeal process
rather than the grievance procedure. This does not transform the
civil service procedures into a mandatory subject of bargaining.
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a Citizen Review board assessment or to respond to citizens'
telephone calls to city hall, or to citizens protesting on the
steps of city hall is entirely irrelevant to the question of
whether a topic is a mandatory subject of bargaining.
To summarize, an issue is a mandatory subject of bargaining
if it significantly and materially relates to wages, hours,
working conditions and contract grievance arbitration. If
requested, a party is required to bargain over a mandatory
subject but is not required to reach any particular agreement or
even to make a concession. The operation of the Civilian Review
Subcommittee proposed by the City is materially and significantly
related to both the working condition of being the subject of an
internal affairs investigation and the contract grievance
arbitration procedures. The alternative proposal has an
additional impact on disciplinary action and the timing of
grievances, both mandatory subjects of bargaining.
Date in Augusta, Maine, this 27th day of June, 2001.
MAINE LABOR RELATIONS BOARD
/s/______________________________
Peter T. Dawson
Chair
/s/______________________________
Karl Dornish, Jr.
Employer Representative
/s/______________________________
Carol B. Gilmore
Employee Representative
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